In Defense of Liberty

As I was doing my morning read-around, something that Glenn had linked to this morning caught my eye — and it seems perfect for this Fourth of July holiday period. We’ve often discussed here at FDL the concept of liberty and of rule of law and all of the concerns that we have, individually and collectively, regarding the Bush Administration’s and the Republican Rubber Stamp Congress’ disregard for the long-term consequences of their appalling failure to live up to balance of powers expectations and the poor precedent that is being set by a number of their ill-considered actions.

It’s an interview between another blogger — Andrew Schmookler of None So Blind — had with former Reagan Administration Deputy Attorney General Bruce Fein. The entire discussion is amazing, but there were a couple of points that I wanted to pull out and highlight for everyone.

I have never perceived our magnificent constitutional dispensation as a partisan issue. As Thomas Jefferson explained in his first inaugural, we are all Federalists, we are all Republicans when it comes to the rule of law and the Constitution’s sacred architecture. The Founding Fathers built on a profound understanding of human nature and the propensity of absolute power to deteriorate into absolute corruption and abuses. My convictions about the signature features of the United States that occasioned its blossoming from a tiny nation into a global superpower made my criticisms of Bush’s usurpations natural and spontaneous, even though I voted for him twice and praised many of his measures or appointments, e.g., Chief Justice John Roberts and Associate Justice Sam Alito. I do not think my actions especially praiseworthy, and pale in comparison to the many who have given that last full measure of devotion to preserve government of the people, by the people, and for the people. I would surmise that the majority readily succumb to partisanship over principle because they have never struggled with the lofty ideas and ideals of great philosophers and the Founding Fathers sufficiently to appreciate that the history of liberty is the history of procedural regularity and the rule of law….

And next, Fein’s impressions of the Bush Administration as perceiving its loyalties to building Republican party power, regardless of the long-term consequences to the Constitution, the rule of law, and the consequences of precedents that ripple outward:

I am worried about Bush abusing his own precedents along with worries over what his successors might do. At present, the scope of his surveillance or other spying abuses is unknown because they remain largely secret, which is why I have strenuously urged muscular congressional oversight. There may be abuses ongoing that will not be known until years later, just as the abuses discovered by the Church Committee, e.g., illegal mail opening, interceptions of international telegrams, and misuse of the NSA for non-intelligence purposes were not discovered until more than two decades after the fact. If another 9/11 abomination occurred, I think there would be a strong probability that Bush would brandish his precedents to vanquish the Fourth Amendment and to detain citizens based on religion or ethnicity. Everything in life is a matter of degree, and while FDR, Nixon, McCarthyism, and Clinton were occasionally lawless, Bush is systematically so. Thus he is the greater danger. The rule of law can survive a beating once every five or ten years; it cannot survive beatings every five or ten minutes.

In retrospect, I think the Bush administration from the outset believed their loyalty was to their own power or the Republican Party, not to the Constitution or country. I think its intellectual universe is confined to distinctions pivoting on “wedge” issues or strategies calculated to win politically no matter what the cost to the rule of law or constitutional practice. It is temperamentally, intellectually, and morally incapable of statesmanship.

Nations that confront no serious external enemy to remind them of the reasons for their success are inclined to internal rot. That is one lesson from Gibbon’s Decline and Fall. After the Soviet Empire disintegrated in 1991, the Superpower status of the United States became unrivalled. We are no longer encouraged in any respect to think about how we became a Superpower and the citizen virtues that underlie great civilizations. Generally speaking, the questions and issues we have explored in these exchanges never make it on the radar screen of the overwhelming majority who neither understand nor care about the philosophical underpinnings of their freedom and prosperity. But these observations are made with a high degree of conjecture. If I knew the answer as to why moral invertebracy in the United States as reached its apogee, I would be a genius, which I am not….

This conjecture, based in a thorough grounding of philosophical and historical study, is what I have been missing from all of the commentary from Bush Administration apologists. And from any explanations given by attorneys who have worked with and for the Administration in drafting disastrous policies that haunt me, such as the Yoo torture memoranda and the Presidential signing statements justifications from Scooter Libby and David Addington, among many, many others.

I have had interactions, but I have not in personal encounters assailed or deplored their silence. I do not believe that I was born God Almighty to serve as a moral prophet ala John Knox. A few have discerned legality in Bush’s illegalities with reason I think are preposterous. But most simply do not believe it their task as private citizens to act as Good Samaritans, especially since the Democrats are intellectually bankrupt.

My speaking out as occasioned a fair share of shrill or vituperative emails, but no face-to-face personal nastiness or ostracism. I do not feel I am encountering a McCarthy-like atmosphere. You never know what kind of business fails to arrive from controversial statements. Whatever price I have paid is ridiculously paltry in comparison to those Lincoln lionized in the Gettysburg Address.

Bush’s precedents are dangerous, and will lie around like loaded weapons readily unleashed by any incumbent in times of strife or conflict, e.g., a second edition of 9/11. Political science, however, remains in its infancy. To predict with exactness the ramifications of lawless precedents on the rule of law and liberties would be folly. For instance, FDR’s lawlessness in WW II, including the odious internments of Japanese Americans, the lawlessness of McCarthyism, the lawlessness of Jim Crow, the lawlessness of Nixon and Clinton’s lying under oath were all serious but have not shipwrecked our constitutional enterprise, at least not yet. But as Justice Brandeis amplified, all government lawlessness is dangerous because it teaches people by its example. We are more likely to lose democracy on the installment plan like the Roman Republic as chronicled by Gibbon than by a military-industrial coup. In addition, we should never be satisfied by simply avoiding being a police state, but as Washington lectured at the Constitutional Convention, we should strive to set a standard to which the wise and honest may repair….

Truly, an extraordinary exchange, and one that is worth reading from start to finish. Such public discourse is sorely needed in a time when invective has replaced well-considered, thoughtful debate over the consequences of our actions — not just for the current generation, but for generations to come.

Constantly questioning and testing the foundations of our decisions and the consequences thereof is how we see whether they are truly solid. Asking these difficult questions is the true definition of patriotism, and is what the early pamphleteers who became the Founding Fathers of this very nation did in the Federalist and Anti-Federalist writings as well as the works of Thomas Paine and Benjamn Franklin and others.

These patriots understood that liberty is not purchased so cheaply that she does not require that we work, every single day, to strive toward a better America. It is the citizen who raises his or her voice against tyranny of the majority, against the incursion of government on our individual rights as enumerated in the Constitution and the Bill of rights, against the disregard of the rule of law who is the true patriot.

Bruce Fein was never a philosophical favorite of mine — when he worked for the Reagan Administration, especially during his numerous appearances on Capitol Hill to promote this or that legal policy while working for the Ed Meese AG’s office — I would find myself almost shouting at the top of my lungs at the television watching the hearings. But this is America, and I would similarly fight at the top of my lungs for his right to speak out about that which I would give every fiber I have to fight against. That is what it means to be an American – to truly have the freedom to speak ones mind on issues of import, but to respect that others have the same right to do so as well.

It is in his dedication to the same core principles of legal scholarship and precedent and the rule of law that I find common ground with Mr. Fein. And I thank Andrew at None So Blind for taking the time to do this extraodinary interview. Please, go and read it in its entirety. And then take some time to talk about it with someone else — whether or not they agree with you — because the conversation is worth having, and we need to get it started for the sake of our nation, our Constitution, and the generations to come.

It is high time that men and women of good conscience and a sound grasp of history and consequences spoke up.

"A time comes when silence is betrayal." Dr. Martin Luther King, Jr.

(This amazing photo was taken by James L. Amos. A friend of mine found it and sent it to me via e-mail, knowing that I would love it’s design and color, and the visual beauty of the panorama. Fantastic piece of artwork and a photographer with an amazing eye. Bravo!)

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.